Challenge to Florida VBAC Ban Intensifies

A coalition is challenging a VABC ban by Florida’s Agency for Health Care Administration, charging among other things that it is intervening in the activities of licensed providers and overriding “informed consent” standards.

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Unwilling to accept a permanent ban on vaginal birth after Cesarean (VBAC) in Florida’s birth centers, a coalition challenging the rule argues that Florida’s Agency for Health Care Administration is overstepping its bounds by intervening in the activities of licensed healthcare providers and by overriding the “informed consent” standard for patients.

While BirthGirlz, a birthing-rights nonprofit based in Miami, is coordinating with an attorney and intends to file a lawsuit if the VBAC ban becomes official, it and other organizations are first moving through AHCA’s appeal process for the proposed change to Rule 59A-11.009. Advocates, midwives, birth center owners, and parents were among those who participated in AHCA’s recent rule-making workshop—which serves as an initial hearing for the proposed rule—to share research information that underscores the safety of VBAC in birth centers.

“We put our hearts out there,” said Char Lynn Daughtry, a certified professional midwife and co-owner of Florida’s Labor of Love birth centers. “We went all out there, and I saw (the AHCA representatives’) faces change.”

But Miriam Pearson Martinez, a licensed midwife who serves on the Pushing for VBAC committee of BirthGirlz, said she thought the hearing “went not so well.”

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“I’m just taken aback that informed consent is not enough for vaginal birth after Caesarian,” she said about AHCA’s position. Pearson Martinez, who was ill the day of the hearing, participated in it via technology and later went over recordings of it. “(AHCA) played at being very, very confused as to why we’d want to provide VBAC, let alone give women a choice.

“They don’t seem to want to accept science, the National Institute of Health, years of study about (VBAC),” she added. “The reality is they’re looking at it like its scary, and not looking at it as women’s rights or as science.”

Last week, the coalition submitted the language that they themselves propose for the rule that guides VBAC procedures in Florida’s birth centers. The coalition’s proposal suggests that the rule should follow the precedent of F.S. 467, the state standard that underscores the need for individuals to be able to choose their own circumstances for giving birth. It also validates informed consent. AHCA has four to six weeks to respond to this language proposal by issuing a decision about the potentially modified rule. The rule will then be open for a public comments period, which the agency is required to take seriously. If the final rule issued by the agency is not supported by evidence or public comments, it is open to legal challenge as being arbitrary.

“They didn’t make their presence known at the (rule-making workshop),” Pearson Martinez said. “But we definitely are anticipating their resistance at bigger meetings later on.”

Nonetheless, she keeps focused on her campaign: “What we’re depending on is that common sense joins science.”

The road to the current tumultuous state of VBAC in Florida’s birth centers is a rather long and complicated one. Susan Jenkins is a lawyer for AABC and legal counsel for The Big Push for Midwives—and she’s followed the case closely. She believes that the lack of understanding of this history contributes to misinformation in the public response and media coverage of the current VBAC challenge.

Jenkins dates the confusion to a 2004 study by the AABC with data showing that there was a slightly higher risk of negative outcomes with VBACs in birth centers. This data infuriated AABC’s membership, which pushed for a new study to be done. A year later, New Mexico midwife Leah Albers published a review in Birth of the first study’s results and contended that AABC’s recommendations for VBAC limitations were overly broad. From Albers’ review:

When the occasional baby dies in a hospital, no one blames the hospital. Why would birth centers be expected to have a perfect record? Only two-thirds of all US women have vaginal births in hospitals, and those who do are over-treated with numerous technical procedures. Birth centers have important lessons to teach about appropriate care for vaginal birth. When care guidelines are issued based on very small numbers of adverse events, actual risks are overstated and options for women are curtailed. As a result, regrettably, maternity care options for childbearing women in the United States seem to be diminishing year by year.

AABC committed to doing another study on VBAC in birth centers. The Commission for the Accreditation of Birth Centers (CABC)—the independent accreditation counterpart to AABC’s advocacy and membership service—created a policy where accredited birth centers could not do VBACs (based on the first study’s data), but that it would allow exceptions to centers that were participating in the second AABC study.

In the midst of this back-and-forth, Florida learned of the initial AABC data and independently decided that all birth centers licensed by the state would not be allowed to do VBACs. When local birth centers pointed to the CABC exemption, Florida amended its policy to mirror it. This policy—where VBACs in Florida were only permitted in birth centers participating in a research study—is the rule that AHCA seeks to now change by making VBAC permanent in all Florida birth centers, with or without research study participation.

According to Jenkins, AABC’s board eventually realized it wasn’t getting enough data for its second VBAC study. Given this, and the fact that other significant research was being published that found VBACs to be safer than surgical birth, AABC announced that it was not going to finish the study. Florida didn’t initially know about this change, though AABC made the information public. To work within Florida’s restricted policy on VBAC, a Miami birth center created an organization called the National Association of Childbirth Studies—AABC’s original name—and announced that it was going to do a VBAC study, and so created an opportunity for birth centers to conform to the letter of Florida’s law.

Meanwhile, in August 2008, the CABC reviewed the many studies coming out on VBAC and announced that it would again accredit birth centers that did VBAC, whether or not they were participants in a study.

According to the revised CABC protocol, “(t)he new policy allows for accredited birth centers to do VBACs (in) the birth center if the mother has already had one or in more successful VBACs. The policy also allows for birth centers to seek permission from the CABC do primary VBACs. … This new policy will promote access to care for many VBAC moms …”

So what changed to catalyze the current clamor around the Florida rule? Jenkins said that at some point, Florida’s AHCA wrote to the AABC asking if it was still doing its study. AABC said they were not.

“On the basis of that, the Florida agency started looking at changing their exemption,” Jenkins said. “In the meantime, one of Florida’s birth centers wrote them a letter asking them to rescind the rule on the basis of the new studies coming out, and pointing out that licensed midwives in Florida were allowed to do home VBACs.

“They turned her down,” Jenkins said.

AHCA went on to push forward with the change to its VBAC policy in Florida birth centers, looking to make a permanent ban—and catalyzing the coalition now challenging them on it. Advocates point out that the study on which the Florida restrictions were originally based is now out-dated; that a plethora of other research studies exist that articulate the value of VBAC; and that CABC itself changed its rule to accredit birth centers doing VBAC on the basis of this new and persuasive information. AABC has issued a strong letter of support to the coalition challenging this ban. Char Lynn Daughtry, who sits on AABC board of directors, believes that this letter, combined with the evidence-based studies presented to AHCA at the recent hearing, will be influential.

But the case comes down to a simple point, according to Miriam Pearson Martinez: “Forced surgical birth is illegal. … It is limiting the women who can and can’t have vaginal birth.”

“Now women are forced to have home birth, or hotel birth, or hospital birth, often without labor,” Pearson said of women who want VBAC as an option

For those who want to support the challenge to a VBAC ban in Florida, Pearson Martinez suggests the following actions.

Make a donation to the Pushing for VBAC committee of BirthGirlz to support their attorney fees. “Nobody’s being paid or being reimbursed,” Pearson Martinez said of the current campaign.

“If the rule becomes official, this rule is in direct conflict with physicians and licensed nurse midwives.” Pearson Martinez said. “If I’m licensed to provide VBAC, the rule is a restriction on my trade. I believe it’s also in direct conflict with Medicaid and Medicare policies of informed consent.”

For her part, Daughtry is hopeful that the ban will not go into effect.

“I feel like we have a good possibility of succeeding — but it is political,” she said.

Pearson Martinez, meanwhile, has a broad vision for the campaign. “This is what we hope is the first step of a bigger attack,” Pearson Martinez said. “We really want to see a class action lawsuit against these hospitals with 80 percent Caesarians.”

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